The Center for Justice & Democracy has a new study, called Lifesavers 2021: CJ&D’s Guide to Lawsuits that Protect Us All. The study describes over 125 lawsuits that have led to major health and safety improvements benefiting large numbers of people, spanning over 50 years. These cases have not only saved lives but also show us how to mitigate some of today’s most dire crises.
Here is a press release that explains the study. The PopTort has a comment here. You can download the full study here.
As reported in TechDirt, the Eighth Circuit Court of Appeals is the latest to add to a body of case law that holds that "engaging in any law enforcement response to a flipped bird is unwise, at best." This decision reminds police officers that being rude towards them isn't a crime.
In this case a police officer conducted a traffic stop after the driver extended his middle finger at her as he drove past her. Other officers arrived later to assist the first officer and the driver was handcuffed and detained for a short period of time. The driver later sued the officers and the City under 42 U.S.C. § 1983, claiming violations of his First and Fourth Amendment rights.
The district court granted summary judgment to the officers and the City, finding that the officers were entitled to qualified immunity because the original officer had probable cause to conduct the traffic stop. In support of the argument regarding probable cause, the officer claimed she had probable cause because of the plaintiff’s “disorderly conduct.” However, the court declined to grant qualified immunity to the officer on the disorderly conduct violation, and she did not challenge the district court’s conclusion on appeal. On the other claims, the Court of Appeals affirmed in part and reversed in part. The case is called Garcia v. City of New Hope, and you can read it here.
Go here for the full story and some commentary.
Last week, the Illinois General Assembly adopted sweeping criminal justice reforms that include the elimination of cash bail and a requirement that police officers in the state wear body cameras. Some of the adopted provisions are very good; others will have unintended negative consequences; but the one provision that caught my eye is one that few people have been talking about.
According to the bill, Illinois police officers will have a “duty to intervene” if they see another officer using excessive force, even if the officer outranks them.
This is not unique as other jurisdictions have adopted similar provisions in the past year. See here, for example. But it is interesting to me because it opens the door to a whole new possibility of civil liability by creating a duty in tort law. What is going to happen if an officer does not intervene and then gets sued in civil court? Will courts recognize the right to sue or will they give immunity to the police departments? Will the court say that the duty is not one that can be enforced through tort law because it is contrary to the generally accepted view that there is no duty to help?
I have not seen the actual bill so I do not know if it addresses these questions in any way; but I will update this post when I find out...
Man who was misidentified by facial recognition software and subjected to police interrogation sues a city in New Jersey, its police department, and a prosecutor for false arrest, false imprisonment and violation of his civil rights. Go here for the story.
In a case that has a number of interesting implications the Court of Appeals for the Sixth Circuit has affirmed the denial of a motion to dismiss in a case involving the suicide of a young boy due to bullying in school.
The case involves a third grader who committed suicide after allegedly being the victim of multiple bullying incidents over a couple of years. According to the complaint, school officials either downplayed the severity of incidents or flat out refused to notify them. Also, despite surveillance footage of the most recent incident, the school's principal and vice principal misrepresented the nature of Taye’s injuries to the boys parents.
The parents sued the school board, and the principal and vice principal in their personal capacities. The defendants filed a motion to dismiss which was denied by the lower court, and the Court of Appeals affirmed.
The case is interesting for a number of reasons. First, there is the question of whether state immunity should protect the defendants.
Second, there is the question of proximate cause. Most often courts find that suicide is an unforeseeable intervening cause that severs the chain of causation preventing plaintiffs from supporting proximate cause. However, in this case the court found that the boy’s suicide was plainly foreseeable, especially considering the school’s guidelines on bullying include suicide as a risk.
As I am sure you remember the prevailing test for proximate cause is to ask whether the injury is a foreseeable consequence of the risk created by the negligent conduct. If the school guidelines actually mention suicide as a risk, it will be very difficult for the defendants to say that it was an unforeseeable consequence.
The case is called Myers v. Cincinnati Board of Education and you can find a copy here.
For more information on the case you can read stories in Law & Crime, and Courthouse News.
As you know, when a plaintiff sues a lawyer for malpractice in a litigation matter alleging that the defendant's representation caused the plaintiff to lose a claim, the plaintiff has to show that they would have won the case had it not been for the negligence of the defendant (the lawyer). In torts terms, this is what the plaintiff has to argue and prove in order to establish the element of cause in fact. Typically, however, courts hold that showing that the plaintiff would have won the original case (sometimes referred to as "the case within the case") is not enough because if the plaintiff would not have been able to recover anything in that case then the plaintiff can't establish an actual "loss" (the element of injury, in torts terms).
This means that typically, the plaintiff has to show not only that the plaintiff would have won the original case but for the negligence of the lawyer, but also that the plaintiff would have been able to collect the judgment (or at least part of it) as a result.
I am writing about this today because the Legal Profession blog reported a few days ago that the Louisiana Supreme Court recently decided a case that appears to be the first time a court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible.
The case is called Ewing v. Westport Insurance and you can read it here.
I just read an interesting article on an alternative way to argue cases seeking compensation against the government. The article begins,
Recent officer-involved shootings and public allegations of police misconduct have sparked legal discussion around accountability for law enforcement. Much of this discussion has come to focus on reforming qualified immunity, a complicated legal doctrine that can shield officers from liability in police misconduct lawsuits. However, plaintiffs may have another option for recourse that does not require grappling with qualified immunity . . .
Back in 2016, there were a number of multi-million dollar verdicts in cases involving second hand exposure to asbestos that addressed the issue of whether an employer should be liable to the family members of an employee who brought home asbestos on their clothes. See here, here, here and here.
The same issue is now back in the news thanks to a a couple of lawsuits filed by the spouses of people who contracted COVID-19 at work and then infected the plaintiffs' at home.
As I explained back then, in the asbestos cases, defendants typically would argue that liability should be limited to the injury to the person who was exposed directly. Otherwise, any bystander who came in contact with this person could sue.
It is not a frivolous argument, but courts in the asbestos cases were able to avoid it by limiting possible liability to the spouses of the workers who had been directly exposed to asbestos.
According to this story in the ABA Journal, two complaints arguing COVID related injuries have been filed already and more are expected.
Prosecutors are usually protected from possible civil liability because they can claim immunity. However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.
There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one. In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law.
The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further proceedings.
You can read more about the case here, where you can also find an embedded copy of the opinion.
